Knuckey and Moorehead: Secrecy over civilian casualties

By Sarah Knuckey and Alex Moorehead/The Washington Post

Sunday

Jun 3, 2018 at 3:22 AM

Over dinner with his advisers in January 2017, freshly inaugurated President Donald Trump made one of his first significant decisions as president by approving a military raid into Bayda, Yemen. Trump's subsequent claim that the operation was a resounding success couldn't have been more wrong: A Navy SEAL was killed, as were nine children under 13 years old, including a 6-year-old girl. After just a few days in office, the new president had already managed to wreak carnage.

Since Trump took office, the U.S. government has dramatically increased lethal operations in Yemen and Somalia and, according to independent monitors, caused record numbers of civilian casualties in Iraq and Syria.

Just how many civilians does the United States believe it has killed? The government won't say.

In a move that should set off alarm bells for all Americans, in early May the White House failed to comply with an Obama administration-era executive order requiring it to publicly report on the number of civilians harmed in U.S. counterterrorism strikes. The government keeps detailed records of the number of civilians it believes it killed in each airstrike and raid. The executive order, issued in 2016, was a small but important mandate merely requiring that thedata be released to the public.

The creation of the executive order followed a long struggle by victims and civil society organizations for more transparency and accountability in U.S. counterterrorism operations. For many years, the George W. Bush and Obama administrations kept such operations shrouded in near-complete secrecy. In response to sustained scrutiny by journalists, civil-society organizations and the United Nations, the U.S. government began to reveal a few details. These small concessions mattered. In some cases, families of civilians received acknowledgment of their harm, the public gained more insight into the rules the U.S. government claimed to follow, and the government released records on civilian casualties.

The excessive secrecy surrounding the real effects of U.S. operations abroad has long been corrosive, as we explained in a comprehensive report jointly published last year with the Sana'a Center for Strategic Studies, an independent Yemeni thinktank. Trump is making matters even worse. The White House's refusal to publish even a simple report on civilian harm is the latest demonstration of this administration's penchant for secrecy.

Since Trump took office, the U.S. government has changed its policy on counterterrorism strikes, putting more civilians at risk in more countries, but refusedto confirm or deny that the new guidelines exist - even though the prior administration had released both summary and declassified versions of its own lethal-strike "playbook."

The Trump administration has also been less forthcoming about why it believes its strikes are legal and published less information about individual strikes in countries such as Somalia and Yemen.

This secrecy undercuts the American public's right to know about the true role and costs of U.S. military interventions overseas, information that allows the public to debate their government's actions and to hold their elected representatives to account. Secrecy damages relations with U.S. allies, which see it as harmful to the rule of law and which worry about the political and legal risks of cooperating with the United States.

Secrecy also matters to those injured and the families of those killed in strikes, whose suffering remains unacknowledged and unaccounted for. Human rights organizations working in Yemen, for example, continue to report on how undue secrecy by the United States creates grievances against the U.S. government and undermines the fight against terrorism. As we have heard in our own work in Pakistan and Yemen, families and communities are critical of what they see as U.S. hypocrisy: Americans, they say, preach about democracy and the rule of law even as they blow people up without acknowledgment or explanation.

Because of the gravity of such concerns, Congress must live up to the responsibility it has often avoided and should closely scrutinize the administration's actions. It has some tools to do so: Last year, Congress passed important legislation requiring the Pentagon to send Congress an annual report on civilian casualties. The report, due May 1, is late; journalists have indicated that it is being prepared, but it is not clear that it will be made public.

For the sake of democratic accountability, Congress should use its oversight powers to ask hard questions of the administration and demand publication of the government's civilian casualty records. Release of these records will help affected civilians, the American electorate and the international community to assess, understand and scrutinize some of the true costs of U.S. military interventions overseas.

Sarah Knuckey is an associate clinical professor of law, director of the Human Rights Clinic and faculty co-director of the Human Rights Institute at Columbia Law School. Alex Moorehead is director of the Project on Human Rights, Counterterrorism and Armed Conflict and lecturer-in-law at the institute.

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